11 become well recognized that the exercise of the police power may lawfully infringe the freedom of contract. Thus the Supreme Court has held statutes constitutional which compelled mine operators to pay wages according to mine weight before screening, prohibited masters from paying seamen in advance,12 prohibited contractors to pay employees less often than semi-monthly,13 compelled employers to cash strip or store orders,11 limited the right to assign wages to be earned,15 limited the hours of labor in a mine,16 forbade the employment of any person in any mill, factory or manufacturing establishment beyond ten hours a day and which allowed three hours' overtime at time and a half of the regular wage.17 It is, therefore, apparent that the Supreme Court has by no means adhered to the strict individualistic theory and in view of these decisions the Minimum Wage Case is disappointing. Upon principle it is difficult to understand how the fixing of a minimum wage for women is any more a violation of the he thinks best. . . ." Ramsey v. People, 142 Ill. 380, 32 N. E. 364 (1892), in which the statute declared that the pay should be computed on unscreened coal. People v. Marcus, 185 N. Y. 257, 77 N. E. 1073 (1906), where the statute forbade employers from prohibiting employees to join the union. 11 McLean v. Arkansas, 211 U. S. 539 (1909). 17 Bunting v. Oregon, 243 U. S. 426 (1917). freedom of contract than regulations as to the manner and time of payment of wages or than the fixing of maximum hours of labor. Indeed, in Bunting v. Oregon 18 the minimum wage for overtime was fixed as to all persons. Even if the limitation of hours of labor does not have the practical effect of increasing the wages per hour, it can hardly be said that the amount of wages is any more, in the language of the Court, "the heart of the contract" 19 than the number of hours of labor. The consideration of the one enters into the fixing of the other. If the law limiting the hours of labor leaves the parties free to contract about the wages, the fixing of wages leaves the parties free to contract as to the hours of labor.20 Furthermore, the comfort which the Court gets from the Nineteenth Amendment is unwarranted. The amendment gives women political rights, but does not for that reason render them practically and economically equal to men. But irrespective of that, 18 Supra in note 17. 19 "It is sufficient now to point out that the latter as well as the Statutes mentioned under paragraph 3, deal with incidents of employment having no necessary effect upon the heart of the contract, that is the amount of wages to be paid and received. A law forbidding work to continue beyond a given number of hours leaves the parties free to contract about wages. . . ." 20 If a maximum hour law were enforced this might not be so, but it could hardly be argued that a maximum wage law is unconstitutional because an hours of labor law has been passed first or vice versa. necessitous persons can rarely be said to be free tc do as they will and in a present exigency will accept employment under unfair terms. The liberty to contract freely which the Court is so careful to safeguard for the employees may mean a great deal to the academic theorist, but to the laborer it means little because it is already limited by circumstances. It was said in Holden v. Hardy 21 "the proprietors lay down the rules and the laborers are practically constrained to obey them. . . But the fact that both parties are of full age and competent to contract does not necessarily deprive the State of the power to interfere where the parties do not stand upon an equality, or where the public health demands that one party to the contract shall be protected against himself. "The State still retains an interest in his welfare, however reckless he may be. The whole is not greater than the sum of all the parts, and when the individual health, safety and welfare are sacrificed or neglected, the State must suffer.' 22 The purpose of the minimum-wage laws generally is to insure that those who give a day's work shall receive a day's support in return.' It was felt by proponents of such laws that wages fixed merely by the economic law of supply and demand, at least in the case of women, did not accomplish this result. That this belief has substantial ground for support 21 Supra in note 16. 22 See Thomas Reed Powell, The Constitutional Issue in Minimum-Wage Legislation, 2 Minn. Law REVIEW I (1917). is indicated by statistics 23 and by the passage of minimum-wage laws in so many states and countries. 24 As has already been pointed out, there is no difference in kind or degree of interference with the freedom of contract caused by minimum-wage laws than the maximum-hour laws. There may be a difference in the need and appropriateness of one as compared to the other; but respectable authority substantiates the need for minimum-wage laws and the Court in its decision should have recognized as a proper exercise of the police function the bona fide attempt to meet such need. Even though the theory of the legislation may be economically unsound the Court should have, in deciding a question under the Constitution, yielded their contrary social dogmas.2 "The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics. . . . But a con 23 See brief of appellants in the principal case. 25 24 Outside of the District of Columbia the following states and countries have passed minimum wage legislation: Arizona, Arkansas, California, Colorado, Kansas, Massachusetts, Minnesota, Nebraska, North Dakota, Oregon, Texas, Utah, Washington, Wisconsin, Porto Rico, Great Britain, Canada, Australia, New Zealand, Argentina, France and Norway. 25 Lochner v. New York, 198 U. S. 45 (1905). Holmes, J. (dissenting), said at p. 75: "This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agree with that theory, I should desire to study it further and long before making up my mind. But I do not concede that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law." stitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire." 26 The Court's fear that the right to enact minimumwage laws will authorize the passage of maximumwage laws has no basis. One does not necessarily follow from the other. The circumstances which justify a minimum-wage law would make a maximum-wage law arbitrary and unreasonable. And if an extraordinary state of affairs existed by which labor was in a position to exact such gross wages that the mulcted industries would be unable to continue, then perhaps maximum-wage laws would not be so unwelcome. The employer was not unduly imposed upon by the minimum-wage law in question. It is true that he was compelled to pay at least what the commission ordered, but the wage fixed bore a relation to the particular industry. This was shown by the fact that the sums differed in different occupations. If the woman employed was not worth the minimum. wage he could have discharged her and employed one that was.27 If the minimum was so high that none 26 Lochner v. New York, supra, in note 25, at p. 75. 27 The press has commented on the objections raised by women themselves to minimum wage legislation applying only to women. They argued that the practical result of such legislation is that many employers, finding the employment of women unprofitable under these laws, discharge them in favor of men. See an article in the New York Times, March 25, |